President Signs Indecency Bill

On the First Amendment front, the big news coming out of Washington this week was that, well… your government still doesn’t really believe in the First Amendment! President Bush signed into law a massive increase in broadcast “indecency” penalties. The new law, called the Broadcast Indecency Enforcement Act, would boost the fines that the Federal Communications Commission could impose on television and radio broadcasters from a current maximum of $32,500 to $325,000–a 10-fold increase.

No surprise here, of course. It’s an election year and this sort of thing wins you brownie points with certain constituencies. While I don’t want to get into an extended legal analysis about why I think all this will eventually be struck down by the courts–see this essay for that discussion–I just want to point out, for the umpteenth time, the radically unfair and illogical nature of all this. Let’s just lay out the current state of affairs in terms First Amendment protection in America:

MEDIA PLATFORM / FIRST AMENDMENT STATUS
Newspapers = Full First Amendment protection
Magazine = Full First Amendment protection
Cable TV = Full First Amendment protection
Satellite TV = Full First Amendment protection
Movies = Full First Amendment protection
DVDs = Full First Amendment protection
CDs = Full First Amendment protection
Satellite Radio = Full First Amendment protection
Internet = Full First Amendment protection
Blogging = Full First Amendment protection
i-Pods = Full First Amendment protection
Podcasts = Full First Amendment protection
Video Games = Full First Amendment protection

… and then…

Broadcast TV & Radio = Second Class Citizenship Rights in Terms of the First Amendment

In other words, we are singling out one sliver of our modern, multi-channel media universe for unique treatment and special punishment in terms of speech. It just doesn’t make any sense.

In particular, what is so troubling about this is that all these “broadcast indecency” laws and new fines are premised on the idea of “protecting the children.” As much as I appreciate the government trying to raise my kids for me, I feel I have this job under control on my own and don’t need them to come in and play the role of surrogate parent. But here’s the real news flash for our lawmakers: Kids are increasingly tuning-out broadcast TV and radio and tuning-in to all those other media outlets and technologies listed above. Therefore, would someone please explain to me how we are “protecting the children” here instead of just protecting adults from themselves?

Now I’m not about to advocate extending censorship laws, fines and regulations to all those new media outlets (indeed, if you read what I’ve published here, here, here, here, and here, you’ll see I am totally opposed to such a notion. Nonetheless, I think that if you want to make a principled, consistent argument in favor of protecting children through government regulation, then you simply cannot ignore the rest of the modern media universe the way our lawmakers have done here. You have to make the case for regulatory parity by applying censorship laws equally across all media platforms. (Of course, good luck accomplishing that!)

Moreover, I just want to again point out that all the traditional regulatory rationales for regulating broadcasting differently don’t work anymore either. “Scarcity” was once the lynchpin of all broadcast regulation, but today scarcity is the last word that anyone thinks of when discussing media in light of the sheer volume of media at our disposal. “Pervasiveness” is an equally bankrupt regulatory rationale in that it proves too much; it could cover anything public officials deem to be widely available or “uniquely accessible” to children. That leaves the old “public airwaves” argument. Never has there been a bigger fiction in the history of regulation than the notion that “the public owns the airwaves.” Can you cite one single line anywhere in the U.S. code that says anything about the “people” owning broadcast spectrum? You cannot because it is a myth. Back in the 1920s and 30s, however, Congress did unwisely choose to give the FCC the authority to regulate the electromagnetic spectrum and in doing so extended a certain amount of authority over speech. This was a serious mistake and it was–and remains–a historical anomaly. Again, all other media are granted full First Amendment rights.

Bottom line: This entire regulatory house of cards is set to crumble. It’s only going to take the right court case to do so. In the meantime, we know that lawmakers and regulators will continue to feed us false promises about how massive increases in broadcast TV and radio fines will somehow “help American parents by making broadcast television and radio more family-friendly” in the President’s words. It’s utter nonsense. Television and radio, like all other media outlets, will continue to reflect the tastes and desires of our diverse American citizenry.

Moreover, we don’t need government’s help controlling media flows into our home. Families already have it within their power to take steps to bring whatever media they want into their houses. Here’s about 50 first steps.

Adam Thierer / Adam is a senior research fellow at the Mercatus Center at George Mason University. He previously served as President of the Progress & Freedom Foundation, Director of Telecom. Studies at the Cato Institute, and Fellow in Economic Policy at the Heritage Foundation.